Com. v. Banks, J.

Opinion

J-S54007-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JAMIL BANKS,

Appellant No. 2262 EDA 2014

Appeal from the Judgment of Sentence July 28, 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0009614-2012

BEFORE: BOWES, PANELLA, AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.: FILED NOVEMBER 16, 2015

Jamil Banks appeals from the aggregate judgment of sentence of thirty

to sixty years incarceration imposed by the trial court after a jury found him

guilty of third-degree murder, conspiracy to commit murder, possession of

an instrument of crime (“PIC”), and carrying an unlicensed firearm, and the

court found him guilty of persons not to possess a firearm. We affirm.

The trial court delineated the salient facts as follows.

On April 12, 2008, at about 12:30 p.m., Joan Hill was working at an insurance office located at 5637 Chew Avenue when she saw a blue Lincoln town car park with the engine running on Woodlawn Avenue. A man, later identified as defendant Salmond, dressed in women’s Muslim clothing exited the vehicle. Hill believed the man was going to rob Skyline Restaurant, located around the corner, so she called 9-1-1 and gave the license plate number of the vehicle.

* Former Justice specially assigned to the Superior Court. J-S54007-15

At around noon that day, Kerron Denmark and Kenneth Wiggins went to Skyline Restaurant and Wiggins ordered food. Immediately after they left the restaurant with Wiggins carrying his food, a man approached them asking for marijuana. As Denmark and Wiggins were walking down the street someone yelled “don’t f’ing move.” Denmark heard gunshots and ran away.

On April 12, 2008, at 12:44 p.m., while on routine patrol, Police Officer Christopher Mulderrig was flagged down by a man on the street and told there had been a shooting about two blocks away. When Officer Mulderrig arrived at 5643 Chew Avenue, he observed a male, later identified as Wiggins, lying in the street with a gunshot wound to the chest. Wiggins subsequently died from this gunshot to his chest.

After the murder, Detective Thorsten Lucke recovered surveillance video from Skyline Restaurant. The surveillance video showed Wiggins and Kerron Denmark enter Skyline Restaurant. While the men are inside the restaurant, a vehicle drives by on Chew Avenue and turns left at the corner. Defendant Banks and defendant [Quentin] Salmond, wearing women’s Muslim clothing, emerge from the area where the car had turned from Chew Avenue. The defendants walk towards Skyline Restaurant. Defendant Salmond stops in an alley while defendant Banks enters the restaurant. Defendant Banks buys a bottle of soda, leaves the restaurant, and stands with defendant Salmond in the alley, out of sight of the camera. After Wiggins gets his food, he and Denmark leave the restaurant and walk down the street. Defendant Banks follows closely behind Wiggins and Denmark while defendant Salmond follows farther back. The defendants confront Wiggins and Denmark and Wiggins falls to the ground. Quickly thereafter everyone runs away.

Police Officer Joanne Gain of the Crime Scene Unit recovered two .22 caliber fired cartridge casings, a Nike Air Jordan sneaker, and a Mountain Dew bottle from the murder scene. Officer Gain tested the Mountain Dew bottle for finger prints and DNA. According to Police Officer John Cannon, an expert in firearms identification, these two .22 caliber fired cartridge casings were fired from the same unrecovered firearm. The bullet recovered from the decedents body and the fired cartridge casings were not fired from the same firearm.

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On April 14, 2008, at about 9:00 p.m., an unlicensed blue Lincoln town car was found on fire in the area of Tenth Street and Chew Avenue. Lieutenant Rodney Wright of the Philadelphia Fire Department determined that the vehicle was burned intentionally.

On April 15, 2008, Charles Hayward gave a statement to police. Hayward explained that in February he had sold the blue Lincoln town car that Hill had called in to 9-1-1 to Bernard Salmond, defendant Salmond’s brother. According to Hayward, about a week previously, Wiggins had robbed defendant Salmond after they had been gambling.

On April 17, 2008, Richard Hack, a friend of Wiggins, gave a statement to police. Hack explained that two days before the murder, defendant Salmond, Wiggins, and himself were gambling. Defendant Salmond and Wiggins argued about a gambling debt and then Wiggins choked defendant Salmond and took $1000 from him. For the next couple of nights, defendant Salmond and his friends were in the area looking for Wiggins.

On January 13, 2010, Robert Bluefort told police that about three weeks after the murder, defendant Salmond confessed to him that he shot Wiggins. According to defendant Salmond he had to shoot or be shot. Bernard Salmond told Bluefort that the police had questioned Hayward because the car that was used in the murder was in his name. Bluefort and Bernard Salmond then discussed burning the vehicle. Bernard Salmond stayed with Bluefort for about a month after the murder.

Trial Court Opinion, 10/3/14, at 2-4.

As noted, the jury found Appellant guilty of the aforementioned

offenses arising from the shooting death of Mr. Wiggins. On July 28, 2014,

the court imposed sentence. Specifically, it sentenced Appellant to twenty

to forty years imprisonment for third-degree murder, followed by two

consecutive terms of incarceration of five to ten years for conspiracy and

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persons not to possess a firearm. In addition, the court imposed concurrent

sentences of three and one-half to seven years imprisonment for carrying an

unlicensed firearm, and one to two years for PIC. Appellant timely filed a

post-sentence motion on July 30, 2014. The court denied that motion and

this timely appeal ensued.

The trial court directed Appellant to file and serve a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal. Appellant complied,

and the trial court penned its Rule 1925(a) decision. The matter is now

ready for this Court’s review. Appellant presents one issue for our

consideration.

I. Did the Lower Court err in denying defendant’s request for a mistrial when the prosecutor committed prosecutorial misconduct during closing arguments by improperly shifting the burden of proof by suggesting that if the defendant wanted DNA evidence he could have provided it himself?

Appellant’s brief at 3.

We consider whether a new trial is mandated due to prosecutorial

misconduct based on an abuse of discretion standard. Commonwealth v.

Culver, 51 A.3d 866, 871 (Pa.Super. 2012). A prosecutor’s comments will

not be reversible error “unless the unavoidable effect of such comments

would be to prejudice the jury, forming in their minds fixed bias and hostility

toward the defendant so that they could not weigh the evidence objectively

and render a true verdict.” Commonwealth v. Hawkins, 701 A.2d 492,

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503 (Pa. 1997). Further, “comments by a prosecutor must be examined

within the context of defense counsel's conduct.” Id. It is axiomatic that

the Commonwealth bears the burden of proof in a criminal matter and that

the defendant is not required to present any evidence. Commonwealth v.

Wiggins, 328 A.2d 520 (Pa.Super. 1974).

Here, defense counsel argued during his closing,

Not one detective, not Detective Williams, not Detective Kelhower, not anybody bothers to get a [DNA] sample from my client to see if it’s him. Why? Because it might . . . . show it’s not him ....

But all you had to do was get a DNA profile from my client and you could have been able to tell if that region excluded him. You could have been able to tell if you had the right guy and they didn’t even look.

N.T., 3/11/14, 135-136.

The prosecutor responded with the argument objected to by Appellant

below and on appeal. The prosecution maintained,

But now we have a fingerprint. What are we arguing about now? We are talking about DNA. DNA on a profile that is so weak nobody can match to it, but it can exclude somebody and [defense counsel] has equal access to the person. If he is so confident his client will be excluded, submit your client for review. He didn’t do it[.]

Id. at 171.

Appellant argues that the prosecutor’s argument improperly shifted

the burden of proof to him and erroneously suggested that he was required

to present evidence to demonstrate his innocence. In his view, the

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prosecutor’s closing statement infringed on his Fifth Amendment rights.

Appellant continues that the trial court’s general instruction to the jury that

the defendant bore no burden of proving his innocence or presenting

evidence was insufficient because it did not specifically address the

prosecutor’s remark.

The Commonwealth responds that the prosecutor’s closing argument

did not shift the burden of proof and was a fair response to Appellant’s own

summation. It contends that once Appellant argued that the absence of

DNA evidence was a result of a poor police investigation and that police did

not collect DNA because it might show that Appellant was not the culprit, the

prosecutor was allowed to respond. In this respect it relies on

Commonwealth v. Paddy, 800 A.2d 294 (Pa. 2002). Therein, the

defendant claimed that the prosecutor improperly shifted the burden of proof

during his closing argument by asking why the defendant had not presented

three witnesses that defense counsel had suggested she would call during

defense counsel’s opening statement. The Paddy Court found that the

prosecutor’s remarks were fair response.

Further, the Commonwealth notes that the trial court’s instructions

that the Commonwealth had the burden of proof and that the defendant was

not required to present any evidence or prove anything in his own defense

removed any potential prejudice. The Commonwealth also submits that

Appellant’s position that the trial court’s instructions were insufficient

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because it did not explicitly address the prosecutor’s DNA statement is

waived because he did not object to the adequacy of the instruction.

We find that Appellant is entitled to no relief. A jury is presumed to

follow the court’s instructions. Commonwealth v. Mollett, 5 A.3d 291

(Pa.Super. 2010). The court appropriately instructed the jury regarding the

Commonwealth’s burden of proof and that Appellant was not required to

present any evidence. See Commonwealth v. Johnson, 838 A.2d 663,

679 (Pa. 2003). The prosecutor’s passing reference to the fact that

Appellant could have submitted his DNA to his own expert was not so

egregious as to form in the minds of the jurors a fixed bias that they could

not weigh the evidence fairly. Moreover, the prosecutor did not in any way

suggest that Appellant was required to testify, infringing on his right against

compelled testimony. While a prosecutor cannot comment on a defendant’s

failure to testify, it may respond to “questions logically raised by the

evidence or lack thereof, or fair responses to the assertions of defense

counsel[.]” Paddy, supra at 317 (internal citations omitted).

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/16/2015

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